NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 16, 2015
Decided March 28, 2016
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 15‐2381
CRESENCIANO Petition for Review of an Order of the
MARTINEZ‐GARDUNO, Board of Immigration Appeals.
Petitioner,
No. A200‐152‐801
v.
LORETTA E. LYNCH,
Attorney General of the United States,
Respondent.
O R D E R
Cresenciano Martinez‐Garduno, a native and citizen of Mexico, petitions for
review of the denial of a motion to continue his removal proceedings. Despite admitting
his ineligibility for relief from a notice of removal, Martinez‐Garduno sought the
continuance in order to support his girlfriend as she recovered from gallbladder surgery.
The Immigration Judge (“IJ”) determined that the girlfriend’s surgery was not “good
cause” for a continuance under 8 C.F.R. § 1003.29, and the Board of Immigration Appeals
(“Board”) affirmed. Because the claim in Martinez‐Garduno’s petition for review lacks
merit, we deny the petition.
No. 15‐2381 Page 2
Martinez‐Garduno entered the United States without authorization in 1999. After
being convicted of driving under the influence more than a decade later, he came to the
attention of the Department of Homeland Security, which charged him with
removability under § 212(a)(6)(A)(i) of the Immigration and Nationality Act for being in
the United States without permission. At a hearing before the IJ in April 2013, he
conceded removability and requested a continuance “to explore any and all possible
avenues of relief.” The IJ granted a one‐year continuance.
Another hearing was held approximately one year later. At the hearing,
Martinez‐Garduno admitted that he did not qualify for any relief from removal, and
noted that the government had refused to exercise prosecutorial discretion to close the
case administratively. He nevertheless requested a second continuance on the ground
that his long‐term girlfriend—a U.S. citizen—had undergone gallbladder surgery that
week and “may have more surgeries” in the future. Martinez‐Garduno did not argue
that this situation constituted the required “good cause” for a continuance under
8 C.F.R. § 1003.29. Martinez‐Garduno also requested, in the alternative, voluntary
departure for up to 120 days.
The IJ granted voluntary departure for up to 60 days but denied the continuance
request. The IJ explained that Martinez‐Garduno had not shown good cause warranting
a continuance; because he conceded ineligibility for relief from removal, there was
“nothing available before the court.” Upon learning of the IJ’s denial, Martinez‐Garduno
referenced the possibility of appeal, which would effectively allow Martinez‐Garduno to
remain in the United States for a longer period of time. After emphasizing that she “[did
not] encourage frivolous appeals,” the IJ acknowledged that Martinez‐Garduno was
entitled to appeal the denial and stated, “Let the [Board] tell you it’s frivolous.”
On appeal to the Board, Martinez‐Garduno argued that his desire to help his
girlfriend recover from surgery was “good cause in the form of humanitarian
considerations,” notwithstanding his ineligibility for relief from removal. The Board
upheld the IJ’s decision, concluding that Martinez‐Garduno sought a continuance only
to delay his removal, not to eventually obtain relief, and that the request was
uncorroborated by evidence of his girlfriend’s surgery or her need for his help.
In his petition for review, Martinez‐Garduno continues to contend that he had
good cause for a continuance. He argues that “good cause” should be understood to
encompass the medical hardship or serious illness of an alien’s relative or spouse. A
contrary understanding, he contends, would incentivize individuals in his position to
No. 15‐2381 Page 3
skip their removal hearings and later ask an IJ to excuse their absence for “exceptional
circumstances” such as the “serious illness or death of the spouse, child, or parent of the
alien.” 8 U.S.C. §§ 1229a(b)(5)(C)(i), (e)(1).
The government contends that we lack jurisdiction to consider this claim insofar
as it relates to the “exceptional circumstances” provision in § 1229a, because
Martinez‐Garduno did not expressly reference this provision with the Board. “It is true
that an alien must exhaust all administrative remedies available to the alien as of right,
and that this includes the obligation first to present to the Board any arguments that lie
within its power to address.” Issaq v. Holder, 617 F.3d 962, 968 (7th Cir. 2010) (citations
and internal quotation marks omitted). But this Court has not been inclined to find a
failure to exhaust where an alien has adequately “raise[d] the point” at issue on appeal
with the Board. Id. at 968–69.
We need not resolve this issue, however, because Martinez‐Garduno’s petition is
meritless. We review the denial of a motion for continuance for an abuse of discretion.
Giri v. Lynch, 793 F.3d 797, 800–01 (7th Cir. 2015). “Where, as here, the [Board] agrees
with the IJ’s decision but supplements that decision with its own explanation for
rejecting the appeal, we review the IJ’s decision as supplemented by the [Board]’s
reasoning.” Barma v. Holder, 640 F.3d 749, 751 (7th Cir. 2011). We will uphold a
continuance denial as long as the decision is supported by a “legitimate reason.” Wang v.
Holder, 759 F.3d 670, 675 (7th Cir. 2014); see also Calma v. Holder, 663 F.3d 868, 878 (7th Cir.
2011) (explaining that a continuance decision will be upheld “unless it was made
without a rational explanation, inexplicably departed from established policies, or rested
on an impermissible basis”).
Given Martinez‐Garduno’s uncontested ineligibility for relief, the IJ did not err in
denying his continuance request as futile and taken solely for delay purposes. See Wang,
759 F.3d at 675 (finding no abuse of discretion where the IJ believed the continuance
request was merely a “delay tactic” and denied it); Pede v. Gonzales, 442 F.3d 570, 571
(7th Cir. 2006) (finding no error in the IJ’s decision to deny the continuance request
where the alien’s adjustment‐of‐status application was “hopeless[]”). Moreover,
Martinez‐Garduno cannot show that the denial of his request has affected or will affect
the final outcome of his removal proceedings. See Calma, 663 F.3d at 878 (concluding that
the denial of the continuance request was not prejudicial because the Board had already
dismissed an appeal from the revocation of the petitioner’s son’s I‐130 petition).
For these reasons, Martinez‐Garduno’s petition for review is DENIED.